Keep it in your pants and make sure it is turned off, a federal appeals
court warned people who make accidental phone calls through a ruling clarifying
that those who “butt dial” do not have a reasonable expectation
of privacy. This new ruling could have some severe consequences for people
who are going through a divorce or a custody case, depending on their
conversations not only to whom they are speaking with, but the topic.
A opinion by the 6th U.S. Circuit Court of Appeals on Tuesday sets a precedent
on what kind of privacy people can expect in a digital age in which smartphone
accidents like unintentional phone calls can cause embarrassment or reveal
sensitive information. The court compared such situations to a person
who left their blinds open in their home with a reasonable expectation
that people would be able to see what they are doing.
A three-judge panel considered the 2013 case of James Huff, the chairman
of a board that oversees a Cincinnati airport. Huff was talking with a
colleague about replacing the airport’s CEO when he accidentally
called the CEO’s assistant. The assistant tried several times to
get his attention, but after she realized Huff was talking about airport
business she took notes, recorded the call and later shared a summary
with the other airport board members, according to court documents.
The call lasted approximately an hour and a half. Huff later sued the
assistant for intentionally intercepting a private conversation. Judge
Danny Boggs, who authored the opinion, affirmed a lower court ruling that
Huff did not have “a reasonable expectation of privacy” because
he placed the call – albeit accidentally. Perhaps sensitive to the
surveillance implications of the ruling, Boggs went out of his way to
specify that Huff would retain an expectation of privacy if his conversation
was transmitted “by non-pocket-dial means, such as by a hidden recording
device or by someone covertly causing his cellphone to transmit his statements
to an eavesdropper.”
In addition, Boggs made a crucial exception for Bertha Huff, James Huff’s
wife, whose later conversation about family matters was also overheard
during the accidental call and who was a co-

A participant like Bertha Huff is protected from people taking notes of
her conversation captured by an accidental phone call “because speaking
to a person who may carry a device capable of intercepting one’s
statements does not constitute a waiver of the expectation of privacy,”
Boggs wrote in the opinion, overturning the lower court ruling and sending
the case back for further consideration of whether the assistant violated
federal law by taking the notes and recording parts of the discussion.
The case reflects the awkward realities of smartphone ownership, but “in
light of the facts, the outcome is reasonable,” says Marc Rotenberg,
president of the Electronic Privacy Information Center think tank in Washington, D.C.
“The court treated differently the comments of a person whose remarks
were overheard but who was not responsible for the call,” Rotenberg
says. “But the decision does leave open the question whether consumers
should be fully responsible for the actions of their devices. For example,
a court would likely reach a different result if a phone was remotely
enabled. Still the message to cellphone users is clear — don’t
keep your phone in your back pocket.”